General

Gertrude Dubofsky, an Infant under the Age of Fourteen Years, by Morris Dubofsky, Her Guardian ad Litem, Respondent, v. Sam Smith and Bennie Siskin, Appellants

228 A.D. 832·New York Supreme Court, Appellate Division·1930·NY

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Opinion

Gertrude Dubofsky, an Infant under the Age of Fourteen Years, by Morris Dubofsky, Her Guardian ad Litem, Respondent, v. Sam Smith and Bennie Siskin, Appellants. [MAJORITY] Judgment and order unanimously affirmed, with costs. Defendants did not show that the recollection of the witness Radofsky had been exhausted or that it needed refreshing, and, therefore, they were not entitled to have that witness read the claimed prior statement made by him out of court. Under those circumstances the error of the court in not permitting the defendants to have the witness identify Ms signature was not prejudicial. (Civ. Prae. Act, § 106.) Young, Hagarty, Carswell and Tompkins, JJ., concur; Lazansky, P. J., concurs in result.